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Mohammed Uddin, et al v. Alejandro Mayorkas

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


May 15, 2012

MOHAMMED UDDIN, ET AL., PLAINTIFFS,
v.
ALEJANDRO MAYORKAS, DIRECTOR OF THE BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, ET AL.,*FN1 DEFENDANTS.

The opinion of the court was delivered by: Anita B. Brody, J.

MEMORANDUM

Plaintiffs Mohammed*fn2 and Arshia Uddin, husband and wife, bring suit against Defendants Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services ("USCIS"),*fn3 Perry Rhew, Director of the Administrative Appeals Office of USCIS, and Tony Dyson, Director of the Philadelphia Office of USCIS (collectively, "the Government"). The Uddins seek judicial review, pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 701-06, of the Government's denial of their applications for adjustment of status to lawful permanent resident.*fn4 The Uddins allege that the Government unlawfully considered information furnished pursuant to Mr. Uddin's Special Agricultural Worker ("SAW") application as grounds for denying his adjustment of status application.*fn5 Currently pending before me are the parties' cross-motions for summary judgment.*fn6 For the reasons set forth below, I will grant Defendants' motion for summary judgment.

I. BACKGROUND

1. Introduction

Mohammed and Arshia Uddin are natives and citizens of Pakistan. Mr. Uddin originally entered the United States in 1984. Certified Administrative Record of Mohammed Uddin ("CAR-MU") at 24, ¶ 1. Mrs. Uddin came to the United States on April 7, 1991 as a B-2 nonimmigrant visitor admitted for a period of six months. Certified Administrative Record of Arshia Uddin ("CAR-AU") at 164. The Uddins are currently living in the United States without lawful immigration status. They are seeking protection from removal through Mr. Uddin's employment-based application for adjustment of status to lawful permanent resident. Because Mrs. Uddin's application is derivative of Mr. Uddin's, the focus will be on Mr. Uddin's immigration history.

2. Events Related to Mr. Uddin's Filing of His I-485 Adjustment Application

On May 2, 1997, Mr. Uddin was ordered removed in absentia. CAR-MU at 247. Mr. Uddin successfully appealed the removal order to the Board of Immigration Appeals, and his case was remanded to the immigration court for further proceedings. Id. The immigration court vacated the removal order and reopened removal proceedings. Id. at 281. On November 27, 1998, Mr. Uddin's employer, Jembro Stores, Inc. ("Jembro") filed a I-140 Immigration Petition for Alien Worker*fn7 on behalf of Mr. Uddin. Id. at 245. Mr. Uddin's I-140 petition was approved, and on April 9, 2001, the court terminated Mr. Uddin's removal proceeding. Id. at 186. Shortly after termination of his removal proceedings, Mr. Uddin filed an employment-based I-485 Application to Adjust Status to permanent residency,*fn8 pursuant to 8 U.S.C. § 1255(a).*fn9 Id at 170.

Mrs. Uddin also filed an adjustment application as a derivative of her husband's pending application.

3. Mr. Uddin's I-485 Adjustment Application and the Initial Denial of his Application In his adjustment application based on his employment as a manager at Jembro, Mr. Uddin indicated on his Biographic Information form that he had been employed at Jembro since 1984. Id. at 188. In addition to his application, Mr. Uddin submitted a copy of his Pakistani passport. See id. at 194-206. Stamps on the passport denoted that Mr. Uddin had applied for benefits under the Special Agricultural Worker ("SAW") amnesty program. Id. This program was established by Congress in the Immigration Reform and Control Act of 1986, see U.S.C. § 1160, to provide alien farmworkers with lawful temporary residence status and eventually lawful permanent residence. McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 483 (1991). Specifically, the passport stamps indicated that Mr. Uddin had received an I-688A employment authorization card, a card that was only issued to SAW applicants, and that he had re-entered the United States on three occasions under authorization of the SAW program.*fn10 CAR-MU at 194-206.

On March 14, 2005, the Uddins were interviewed regarding their adjustment applications. Id. at 166. During the interview, the District Adjudication Officer ("DAO") asked Mr. Uddin about his employment. Id. at 166, 411. Mr. Uddin informed the DAO that he had been working at Jembro since his arrival in 1984 and had never worked anywhere else in the United States. Id. at 166; 411-13. Mr. Uddin's attorney asked the Supervisory Adjudication Officer ("SAO") why Mr. Uddin was being questioned about his work history. Id. at 413. The SAO "pointed out that [Mr. Uddin's] testimony regarding his work history in the USA ruled out the possibility that he was ever a class member for SAW eligibility."*fn11 Id. Mr. Uddin's attorney agreed that Mr. Uddin "was not a class member, but insisted that nothing relating to the SAW application could be used" in determining Mr. Uddin's adjustment application. Id. The attorney was told that no one had looked at Mr. Uddin's SAW application or SAW file, which was housed at a different location. Id. at 166, 413. The attorney alleged that Mr. Uddin did not know what was claimed on the SAW application. Id. at 166. However, he "was reminded that the established procedure for the SAW Program included an interview where the applicant, with translator if necessary, would declare the basis for his claim for class membership in the SAW Program." Id.

On August 29, 2005, USCIS denied Mr. Uddin's adjustment application.*fn12 Id. USCIS determined that Mr. Uddin's testimony that he had never worked anywhere other than Jembro established that he was not eligible for the SAW program. Id. at 167 USCIS further determined that the SAW stamps in Mr. Uddin's passport were evidence that he had submitted a fraudulent SAW application, and fraudulently obtained a temporary employment card and travel authorization under the SAW program. Id. As a result, USCIS concluded that 8 U.S.C. § 1182(a)(6)(C)(i) rendered Mr. Uddin statutorily ineligible for adjustment of status. Id. Under § 1182(a)(6)(C)(i), "Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible."

4. Mr. Uddin's Motion for Reconsideration, the Notice of Intent to Deny, and his Response On February 5, 2007, USCIS granted Mr. Uddin's motion for reconsideration of the denial of his adjustment application. Upon reconsideration, USCIS issued a Notice of Intent to Deny ("NOID") Mr. Uddin's application. Id. at 97. In the NOID, USCIS explained that Mr. Uddin's testimony that he had never worked anywhere other than Jembro conflicted with the evidence that he had been a member of the SAW program. Id. at 98. USCIS indicated that these contradictory facts suggested that Mr. Uddin "may have sought to obtain adjustment of status in the United States by fraud or willful misrepresentation of a material fact, either in connection with [his] SAW application or [his] current application for adjustment of status." Id. at 99. Accordingly, USCIS intended to deny Mr. Uddin's adjustment application because such fraud or willful misrepresentation would render him inadmissible pursuant to 8 U.S.C. § 1182(a)(6)(C)(i). Id.

In response to the NOID, Mr. Uddin reiterated "his objection to the CIS investigation of this matter and its continuing use of information garnered from the Applicant's SAW application," and submitted additional information verifying and explaining his SAW application. Id. at 21-96. Mr. Uddin's submissions included the following SAW related documents: (1) an affidavit; (2) copies of his three Employment Authorization Cards; (3) a copy of his passport with the SAW stamps; (4) a copy of the decision denying him SAW status; and (5) a copy of his appeal of his denial of SAW status. Id. at 21-22. Mr. Uddin's submissions revealed that he applied for the SAW program on December 29, 1987, and his application was denied on April 18, 1990. Id. at 36-39. The denial decision indicated that Mr. Uddin's SAW application was supported by the affidavit of a farm owner who had pled guilty to supplying fraudulent SAW affidavits, and that Mr. Uddin was not on a list of individuals employed at the farm during the time he claimed to work there. Id. at 37-38. Accordingly, USCIS denied his SAW application because he failed to prove that he had performed qualifying agricultural work for the requisite number of days. Id. at 39. Mr. Uddin appealed the denial of his SAW application and maintained that he had worked on a farm "between August and July of 1985," but did not have any further documentation to support his contention. Id. at 35. The record does not indicate what became of Mr. Uddin's appeal of the denial of his SAW application; however, Mr. Uddin explained that he stopped pursuing his SAW application and using the benefits of the SAW program later in 1991 when he "came to the realization that it [was] wrong." Id. at 26.

In his affidavit, Mr. Uddin swore that he "never knew at the time these papers or the appeal was being prepared that it was wrong to file them." Id. at 25. Mr. Uddin explained that when he applied for SAW, he barely spoke any English and did not know he was filing a "legal application" because an individual named Zafar Khan filed the application on his behalf and did most of the talking to the immigration officer during his interview. Id. at 24. Additionally, Mr. Uddin stated that Mr. Khan did not explain that the application "had any connection to claiming agricultural work." Id. Mr. Uddin also stated that, following the denial of his application, he met with a lawyer for about an hour before he decided to file an appeal. Id. at 25. He then chose to file an appeal because "[o]ther people in [his] community told [him] it was worth asking for an appeal of a case because sometimes people were winning them." Id. Also, "[t]here was a rumor that even if you did not work on a farm before you could still get approved by working later." Id.

5. The Final Denial of Mr. Uddin's Adjustment Application

On June 8, 2007, USCIS issued its final decision denying Mr. Uddin's adjustment application. Id. at 2-7. In its decision, USCIS emphasized that the immigration officer who had interviewed Mr. Uddin in 2005 had never reviewed or had access to Mr. Uddin's SAW application. Id. at 5. Rather, Mr. Uddin had raised the issue of his prior SAW application when he presented evidence of his involvement in the SAW program with his adjustment application. Id. USCIS found many discrepancies and implausibilities in Mr. Uddin's claim that he was unaware that he was perpetrating a fraud during the time period in which he attempted to gain temporary resident status under the SAW program. The following is a summary of the key discrepancies that USCIS identified:

* Although Mr. Uddin claimed in his affidavit that he was "unwittingly led into filing a fraudulent application by Mr. Zafar Khan," he failed "to provide crucial details surrounding his encounter with Mr. Khan." Id. at 2-3. Details that were missing included an explanation as to why Mr. Khan sought Mr. Uddin out at Jembro and offered to help him get a green card, and why Mr. Uddin trusted Mr. Khan enough to give him $1,000 on the day Mr. Khan walked into Jembro. Id. at 3.

C Mr. Uddin alleged in his affidavit that he had an interview with the former Immigration and Naturalization Service ("INS")*fn13 regarding his SAW application. Id. Mr. Uddin "claimed [he] had no idea that the application [h]e signed or this interview had any connection to agricultural work because [he] did not speak any English at the time and Mr. Khan did not advise [him] so, and if there were any fraudulent claims made at the time, that [he] could not have been aware of them because Mr. Khan spoke on his behalf." Id. USCIS found this story implausible. First, it found it implausible that the interviewing officer did not directly interview Mr. Uddin, especially since the regulations require an interview of the applicant and place the burden on the applicant to establish prima facie eligibility for SAW benefits. Id. Second, the claim that Mr. Uddin spoke almost no English was unbelievable because Mr. Uddin passed both his Secondary School Certificate Examination and Higher Secondary Certificate Examination in Pakistan, both certificates were issued in English, and both stated that English was a compulsory subject. Id. at 4.Additionally, USCIS could not understand how Mr. Uddin could successfully perform his duties as a manager at Jembro for three years if he spoke almost no English because his responsibilities included filling out company forms and using the telephone and fax. Id. Thus, USCIS concluded that "contrary to [his] claim, [Mr. Uddin's] English ability was not so poor that [he] could not have understood the basic nature of [his] SAW application or anything said during his interview or stated on any written application." Id.

C Mr. Uddin stated that he stopped pursuing his SAW application or any benefits derived from it once he realized sometime in the later part of 1991 that it was unlawful. Id. However, in 1990, he appealed the denial of his SAW application because of rumors that "even if you did not work on a farm before you could still get approved by working later." Id. (internal quotation marks omitted). USCIS found these statements "inherently contradictory" because "on one hand [Mr. Uddin was] claiming [he] had no knowledge prior to 1991 that the SAW program had any connection to agricultural work, but on the other hand, [he was] acknowledging that [he] knew that SAW program required agricultural work when [he] filed [his] appeal in 1990 . . . ." Id.

* USCIS also found it dubious that Mr. Uddin did not know that the SAW application required agricultural work until 1991 because his NOID and the denial of his application explained that he had no proof of employment as an agricultural worker, which was a requirement of the SAW program. Id. at 4-5. Moreover, Mr. Uddin's hour-long discussion of his appeal with a new attorney, and his filing of an appeal in which he claimed to have performed the requisite agricultural work, added to the implausibility of his story. Id. According to USCIS, Mr. Uddin "providedno plausible explanation as to how or why, since [he] was the one who hired Mr. Hinds [the new attorney], [he] would not know the contents of [his] appeal or even not know what [he was] really appealing." Id. at 5.

After detailing each of these discrepancies in Mr. Uddin's story, USCIS provided the following synopsis:

You claimed the following factors vindicate you of any wrongdoing in your (now apparent) unlawful SAW application: that Mr. Khan solicited you at Jembro with a fraudulent green card scheme; you were unaware of anything that he claimed on your original SAW application; you never once reviewed any applications submitted on your behalf; you never were asked any questions during your interview other than your name; you did not understand what was said during your interview due to your lack of English skills; you sought a new attorney to file an appeal but were again unaware of the contents of that appeal or the legal basis for the appeal; that the new attorney you sought, Mr. Hinds, also filed a fraudulent appeal on your behalf without your knowledge; and that you heard untrue rumors around the community that you could have obtained SAW benefits by working on a farm after approval or that it was worth it to appeal. However, as discussed above, each one of these claims, alone, is questionable and is contradicted by other information; when considered as a whole, these claims create a highly implausible story. You provided no documentary evidence to support any of your claims although you bear the burden of proof to establish your eligibility for the immigration benefits you are seeking. Not only have you failed to provide complete explanations for the discrepancies noted in the notice of intent to deny, but the testimony you now offer presents even more discrepancies.

Id. Based on the above analysis, USCIS concluded that Mr. Uddin was ineligible for adjustment of status pursuant to 8 U.S.C. § 1182(a)(6)(C)(i) because he had "provided unresolved, contradictory and incredible testimony in pursuit of [his] instant adjustment application, which amount[ed] to [] providing fraudulent statements in an attempt to obtain adjustment of status."*fn14

Id. at 6. Mrs. Uddin's adjustment application was also denied because it was derivative of her husband's application. CAR-AU at 2.

II. LEGAL STANDARD

The parties' motions for summary judgment ask me to determine whether USCIS lawfully denied the Uddins' adjustment applications. According to Federal Rule of Civil Procedure 56(a), summary judgment will be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Unlike the typical summary judgment action, the Uddins are seeking judicial review under the Administrative Procedure Act ("APA"). While "[s]ummary judgment is the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review . . . [b]ecause . . . 'the district judge sits as an appellate tribunal' in such cases, Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001), the usual summary judgment standard does not apply." UPMC Mercy v. Sebelius, 793 F. Supp. 2d 62, 67 (D.D.C. 2011); accord Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 770 (9th Cir. 1985) (explaining that summary judgment in an original district court proceeding "is appropriate only when the court finds there are no factual issues requiring resolution by trial"; whereas, summary judgment in a case where the district court is reviewing the decision of an administrative agency under the APA "is an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did.")

Under the APA, a district court may only hold unlawful and set aside agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Generally, "[i]n applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973). "'[A] court is not to substitute its judgment for that of the agency' in an APA challenge." NVE, Inc. v. Dep't of Health & Human Servs., 436 F.3d 182, 190 (3d Cir. 2006) (quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). "Reversal is appropriate only where the administrative action is irrational or not based on relevant factors." Id. In determining whether an agency acted arbitrarily and capriciously, a district examines "whether the agency relied on factors outside those Congress intended for consideration, completely failed to consider an important aspect of the problem, or provided an explanation that is contrary to, or implausible in light of, the evidence." Id.

III. DISCUSSION

1. Significant Issues of Material Fact

The Uddins first argue that there are significant issues of material fact that prevent the court from deciding this case on summary judgment. They ask the court to deny summary judgment in order to allow discovery. The Government counters that it has provided the full administrative record and that because this case is reviewed under the APA there can be no factual disputes. As discussed supra, under the APA, "judicial review of administrative action is limited to the administrative record." Id. Moreover, "[t]here is a strong presumption against discovery into the administrative proceedings born out of the objective of preserving the integrity and independence of the administrative process." Id. at 195. The Third Circuit has indicated an exception to the prohibition on discovery in APA review cases where: (1) the plaintiff alleges bias on the part of the agency; or (2) factors indicate that the administrative record submitted to the district court is incomplete. Id. at 195-96. The Uddins neither demonstrate bias on the part of USCIS nor that the administrative record is incomplete.*fn15 Therefore, they are not entitled to discovery.

2. Special Agricultural Worker Confidentiality Provision

In the alternative, the Uddins argue that they are entitled to summary judgment because the administrative record demonstrates that USCIS unlawfully used information furnished pursuant to Mr. Uddin's SAW application as grounds for denying his adjustment of status. In contrast, the Government contends that the administrative record demonstrates that information in Mr. Uddin's SAW application was not improperly used to deny Mr. Uddin's application. The Government avers that the decision to deny the Uddins' adjustment applications was not arbitrary and capricious; therefore, the Government is entitled to summary judgment.

"The Immigration Reform and Control Act of 1986 (Reform Act) constituted a major statutory response to the vast tide of illegal immigration that had produced a 'shadow population' of literally millions of undocumented aliens in the United States." McNary, 498 U.S. at 481. As part of the Reform Act two amnesty programs were established "to allow existing undocumented aliens to emerge from the shadows." Id. at 482-83. The SAW program is one of these amnesty programs. Id. Under SAW, the Attorney General was required to adjust the status of any alien who resided in the United States and performed seasonal agricultural work for at least 90 man-days during the 12-month period ending on May 1, 1986. 8 U.S.C. § 1160(a)(1). The Reform Act required the Attorney General first to adjust the status of these aliens to lawfully admitted for temporary residence, and then eventually to aliens lawfully admitted for permanent residence. Id. § 1160(a)(1)-(2). A key feature of the SAW program is its confidentiality provision which prohibits the use of "information furnished by the applicant pursuant to an application filed under this section for any purpose other than to make a determination on the application . . . ." Id. § 1160(b)(6)(A)(i). Legislative history indicates that the purpose of this confidentiality provision was to encourage aliens who would otherwise be afraid of apprehension by the INS to come forward and apply for legalization. See Pub. L. 99-603, H.R. 99-682(I), 99th Cong. 2nd Sess. reprinted in 1986 U.S.Code Cong. & Admin. News, 5649, 5677.

When Mr. Uddin applied for adjustment of status, he included a copy of his passport with his application. Three stamps on Mr. Uddin's passport indicated that he had participated in the SAW program. Although the SAW program required Mr. Uddin to have performed agricultural work, Mr. Uddin testified, during his adjustment interview, that he had never worked anywhere other than Jembro. Based on this discrepancy, USCIS initially denied Mr. Uddin's application. After successfully moving for reconsideration of his denial, USCIS sent Mr. Uddin a NOID explaining that it intended to again deny Mr. Uddin's application because of this discrepancy. In response to the NOID, Mr. Uddin submitted additional information about his SAW application. Based on all of the information it had received, USCIS concluded that Mr. Uddin was ineligible for adjustment of status pursuant to 8 U.S.C. § 1182(a)(6)(C)(i) and issued a final denial of his application. At no point during the entire process did USCIS ever view or have access to Mr. Uddin's SAW application. Mr. Uddin contends that USCIS violated SAW's confidentiality provision when it questioned him about his employment history to determine whether he had ever been an agricultural worker; this occurred after USCIS discovered from Mr. Uddin's passport stamps that he had been in the SAW program.

Mr. Uddin's challenge requires construction of the meaning of § 1182(a)(6)(C)(i). "The starting point in every case involving construction of a statute is the language itself." Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197 (1976) (internal quotation marks omitted). "If the statute's plain language is unambiguous and expresses that intent with sufficient precision, [I] need not look further. If the plain language fails to express Congress' intent unequivocally, however, [I] will examine the surrounding words and provisions in their context." Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 367 (3d Cir. 2011) (citation omitted). Where "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).

Although there are a handful of cases that have addressed the SAW confidentiality provision, only two cases have addressed sufficiently similar factual scenarios to warrant discussion. In Soriano-Vino v. Holder, 653 F.3d 1096, 1097 (9th Cir. 2011), the plaintiff was returning from abroad when she was stopped for questioning by an INS inspector. The inspector noticed that a code on the plaintiff's green card identified her as a SAW applicant and proceeded to ask her questions about her employment history. Soriano-Vino, 653 F.3d at 1097-98. During the interview, the plaintiff signed a sworn statement admitting that she committed fraud to obtain her status under the SAW program. Id. at 1097. Based on this admission, the plaintiff was held ineligible for cancellation of removal due to fraud. Id. at 1098. The plaintiff alleged that questioning her about potential fraud in her application violated the SAW confidentiality provision. Id. at 1099. In Lopez v. Ezell, 716 F. Supp. 443, 444 (S.D. Cal. 1989), plaintiffs sought a preliminary injunction to prevent border patrol agents from asking individuals with documents bearing stamps indicating that they were SAW applicants questions concerning potential fraud with respect to their applications. "Plaintiffs characterize[d] the information obtained by the agents' questioning of aliens as 'information furnished pursuant to a SAW application' and therefore confidential and immune from inquiry." Lopez, 716 F. Supp. at 445. In both cases, the courts held that no violation of the SAW confidentiality provision occurred. Soriano-Vino, 653 F.3d at 1101; Lopez, 716 F. Supp. at 446-47.

The Ninth Circuit in Soriano-Vino found that "Congress was as concerned with fraud in the application process as it was with shielding applicants from unauthorized disclosure of the SAW application contents." 653 F.3d at 1101. The court refused to adopt an "approach [that] would prevent any investigation of fraud that referenced any information contained in the SAW application, even if the information was not obtained from the application" because it would "patently thwart[] Congress's expressed intent." Id. The Ninth Circuit concluded that the plain language of the confidentiality provision limited its applicability to information in the application itself, and noted that "[a]pplying the confidentiality provision to information that was not obtained from the application would violate a cardinal principle of statutory interpretation-- that a statute be analyzed and applied in accordance with its plain language." Id. Thus, the SorianoVino court held that "there is no violation of the SAW confidentiality provisions when the challenged information is obtained as the result of questioning at an inspection checkpoint rather than from the application itself." Id.

In Lopez, the court concluded that "[t]he language of the statute, interpreted in a logical fashion, makes only the application and any information taken from the application confidential. On its face, the language of section 1160(b)(6) does not extend to the information not obtained directly from the application itself." 716 F. Supp. at 445. However, recognizing that the language could be deemed ambiguous, the court also examined legislative history. Id. In its examination the court uncovered legislative history explaining that "'[t]he confidentiality of the records is meant to assure applicants that the legalization process is serious, and not a ruse to invite undocumented aliens to come forward and only to be snared by the INS.'" Id. at 45-46 (quoting Pub. L. 99-603, H.R. 99-682(I), 99th Cong. 2nd Sess. reprinted in 1986 U.S.Code Cong. & Admin. News, 5649, 5677). The court also acknowledged that Congress was concerned with fraud in the application process. Id. at 446 (referencing § 1160(b)(6)(A) which exempted information used to enforce the fraud penalty from the confidentiality provision). The court noted that the "questioning of aliens by border agents is an act independent of the application process." Id. After considering the plain language of the statute and its legislative history, the court held that the confidentiality provision should not "be so broadly construed as to completely immunize the underlying facts contained in the application from any independent inquiry." Id. at 447.

As in Soriano-Vino and Lopez, no information regarding Mr. Uddin's SAW status was ever obtained from the application itself. Rather, similar to Soriano-Vino and Lopez, Mr. Uddin's SAW status was discovered because of stamps on a document that he submitted to USCIS and the challenged information was then obtained as a result of questioning by USCIS and in response to the NOID issued by USCIS.

The confidentiality provision prohibits the use of "information furnished by the applicant pursuant to an application filed under this section for any purpose other than to make a determination on the application . . . ." Id. § 1160(b)(6)(A)(i). In a case interpreting the confidentiality provisions of section 245A(c)(5) of the Immigration and Nationality Act, which also prohibits the use of "information furnished by the applicant pursuant to an application filed under this section . . . ," 8 U.S.C. § 1255a(c)(5), the Third Circuit explained that the "ordinary meaning of 'pursuant to' is 'in compliance with; in accordance with; under.'" Patel v. Attorney Gen. of U.S., 599 F.3d 295, 298 (3d Cir. 2010) (quoting Black's Law Dictionary (8th ed. 2004)). Interpreting § 1160(b)(6)(A)(i) using the ordinary meaning of the phrase "pursuant to" it becomes clear that the information Mr. Uddin provided about his SAW status and employment history was not given to USCIS "in compliance with" his application and does not fall "under" his application. Moreover, the statute further provides:

Nothing in this paragraph shall be construed to limit the use, or release, for immigration enforcement purposes or law enforcement purposes of information contained in files or records of the Service pertaining to an application filed under this section, other than information furnished by an applicant pursuant to the application, or any other information derived from the application, that is not available from any other source.

8 U.S.C. § 1160(b)(6)(C)(i). Thus, the confidentiality provision also provides that while the application process itself cannot be used as a means to deny adjustment of status, information obtained from an independent source may be used as grounds for a denial. See McNary, 498 U.S. at 484 (explaining that under the confidentiality provision "the application process could not be used as a means of identifying deportable aliens; rather, the initiation of a deportation proceeding had to be based on evidence obtained from an independent source."). The information that USCIS used to deny Mr. Uddin's adjustment of status was not obtained from the SAW application process; rather, it was obtained from an independent source-- the questioning of Mr. Uddin and his responses to the NOID. I agree with the conclusion reached in Soriano-Vino and Lopez that the plain language of the statute leads to the conclusion that the confidentiality provision applies exclusively to information in the application itself.*fn16 Therefore, USCIS did not violate the confidentiality provision in reaching its decision to deny Mr. Uddin's adjustment application.*fn17

The only remaining consideration is whether USCIS' decision to deny Mr. Uddin's adjustment application on the basis that he was ineligible for adjustment of status pursuant to 8 U.S.C. § 1182(a)(6)(C)(i) was arbitrary and capricious. "Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible." 8 U.S.C. § 1182(a)(6)(C)(i). While proof of fraud requires that USCIS establish that Mr. Uddin had an intent to deceive, proof of willful misrepresentation does not. Mwongera v. I.N.S., 187 F.3d 323, 330 (3d Cir. 1999). "The element of willfulness is satisfied by a finding that the misrepresentation was deliberate and voluntary." Id. (internal quotation marks omitted). Therefore, USCIS' decision that Mr. Uddin was ineligible pursuant to § 1182(a)(6)(C)(i) does not have to rest on proof that Mr. Uddin intended to deceive; rather, Mr. Uddin's "knowledge of the falsity of the representation will suffice." Id.

USCIS concluded that Mr. Uddin was ineligible for adjustment of status pursuant to § 1182(a)(6)(C)(i) because he had "provided unresolved, contradictory and incredible testimony in pursuit of [his] instant adjustment application, which amount[ed] to [] providing fraudulent statements in an attempt to obtain adjustment of status." CAR-MU at 6. Two material statements that USCIS alleges were fraudulently made by Mr. Uddin in his attempt to obtain adjustment of status are: (1) he did not know that his SAW application was unlawful until later in 1991; and (2) he never attempted to obtain any immigration benefits by fraud of willful misrepresentation of material facts.

USCIS has identified several discrepancies that support its finding that Mr. Uddin's statements are fraudulent. For example, Mr. Uddin alleges that he did not know until later in 1991 that the SAW program required agricultural work because he spoke almost no English. This assertion is belied by the fact that Mr. Uddin, while in Pakistan, received a Secondary School Certificate and Higher Secondary Certificate issued in English, which stated that English was a compulsory subject. Moreover, by the time Mr. Uddin filed his SAW application, he had already been working at Jembro for three years doing such tasks as filing out company forms and using the telephone and fax; these tasks could not be accomplished without some understanding of the English language. The record supports USCIS' finding that Mr. Uddin spoke some English. Therefore, it was reasonable for USCIS to conclude that Mr. Uddin knew prior to 1991 that the SAW program required agricultural work because he was interviewed as part of the application process, and received a NOID and a denial of his application explaining that he was not eligible for the SAW program due to his failure to provide proof of alleged agricultural work performed. Even if Mr. Uddin was somehow unaware of the agricultural requirement at the time his application was denied, he met with a new attorney for an hour and then filed an appeal again alleging that he had performed the required agricultural work. Although Mr. Uddin contends that at the time he filed his appeal, he didn't know that agricultural work was a requirement of the SAW program, he simultaneously claims that the reason he filed an appeal was because of rumors that "even if you did not work on a farm before you could still get approved by working later." CAR-MU at 4. Given these multiple discrepancies in Mr. Uddin's statement that he did not know until later in 1991 that his SAW application was unlawful, it was reasonable for USCIS to conclude that this statement was fraudulent.

Admittedly, Mr. Uddin has never performed any agricultural work while in the United States. Thus, USCIS rationally concluded that Mr. Uddin's statement that he never attempted to obtain any immigration benefits by fraud of willful misrepresentation of material facts was fraudulent because Mr. Uddin knowingly misrepresented in his SAW application and/or in his appeal of denial of his application that he had performed agricultural work. The record demonstrates that USCIS did not abuse its discretion when it denied Mr. Uddin's adjustment application on the basis that he was ineligible for adjustment of status pursuant to 8 U.S.C. § 1182(a)(6)(C)(i). USCIS also did not abuse its discretion when it denied Mrs. Uddin's adjustment application because it was derivative of her husband's application.

IV. CONCLUSION

For the reasons stated above, I affirm USCIS' denial of the Uddins' adjustment applications. Therefore, I will grant Defendants' motion for summary judgment and deny Plaintiffs' motion for summary judgment.

ANITA B. BRODY, J.

Copies VIA ECF on _______ to: Copies MAILED on _______ to:

Glossary of Abbreviations

"APA" -- Administrative Procedure Act "CAR-AU" -- Certified Administrative Record of Arshia Uddin "CAR-MU" -- Certified Administrative Record of Mohammed Uddin "DAO" -- District Adjudication Officer "DHS" -- Department of Homeland Security "INS" -- Immigration and Naturalization Service "NOID" -- Notice of Intent to Deny "Reform Act" -- Immigration Reform and Control Act of 1986 "SAO" -- Supervisory Adjudication Officer "SAW" -- Special Agricultural Worker "USCIS" -- U.S. Citizenship and Immigration Services


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